I think this is possibly the most succinct argument of the REAL problem I've heard: balancing the wants of the videographer against the rights and wants of the musical genius that created the music in the first place. We as videographers would quite probably be upset if a music artist decided to download or otherwise acquire our stunning footage of sunsets and beachwalks and slo-mo eagles flying from Vimeo or YouTube and using them in their next national exposure video with NO CREDIT to us.

IMHO, anyone who creates something should have at least SOME say over how it is used, by whom and to promote what. Let's work on streamlining the process for those artists that wish share their creations with us for OUR creative purposes and respect the wishes of those that want NO PART of repurposing of THEIR work.

I never said or implied there was an obligation to license. I'd settle for a response so I could move on.

I disagree with the generalization about music IP owners. Some music IP owners are happy to produce the work for their own purposes and also license it for others. Some do it for fee and others for free.

Just because some music IP owners have no interest in participating sync licensing usage doesn't mean the process for everyone should be costly, geared to them and onerous/biased against anyone (big or small) getting a response to a licensing request. When the IP is registered in an administering organization's catalog and it's there for requests to be had and you don't want it licensed, say "no", have a standing order to say "no", take it out of the catalog or any number of low cost efficient ways of handling it. At least have the decency to respond.

I think the process ought to be improved because IP owners and producers will all benefit by a good system and ecosystem for research, request, review, approval and license/deny issue. That is what some of the cited approaches are doing, including responses of "No". Those of us trying to do it right are the ones putting in the requests for a license. By making it hard, they are losing revenue from those of us who will pay and incenting others to use it without license. Come to think of it, that was one of the key lessons of iTunes, make it easily accessible and reasonably affordable, then people will buy instead of steal.

Sorry for not getting to this sooner. There are a lot of misunderstandings in this thread. I'm going to only address the law, not the comments on whether the law is appropriate or not.

Absolutely not. If the performance includes copyright-protected expression, by videotaping itwithout permission, you are making an authorized copy and an unauthorized derivative work, both of which violate the rights reserved to the copyright owner.

Sorry, but that is not true. There is no, "I was just following orders," exception for copyright infringement liability. If you make the unauthorized copy, you are legally liable, regardless of whether you keep the copy or not.

Correct, though many of the amateur licensing agencies now include a limited videotape right for making an "archival video" of the show. That does not, however, allow distribution, whether for free or not, of copies of the archival video.

Does the school have either a license from BMI or ASCAP for public performance of the music? If not, the school is also violating copyright.

Recording, editing and selling the video would be a violation of copyright.

As a matter of law, it is not, in the least, a gray issue.

You're talking apples and oranges. Whether or not you or the school would be prosecuted for infringement has nothing to do with whether infringement would take place. As a matter of law it would, and scale is irrelevant to anything except the calculation of damages.

And you are completely correct. :)

Exactly right.

Sorry, but this is a gross oversimplification of fair use doctrine. First, the doctrine remains an equitable one, meaning it is committed to the sole discretion of the court, which is not bound by the statute. The statute only offers a guideline, and none of the listed factors are dispositive. In order to determine whether a specific use constitutes fair use, it is necessary to consider the entire body of judicial law addressing the doctrine. With respect to educational fair use, there are a number of niche doctrines (legalese for "gotchas") that have evolved. For example there is a spontaneity requirement, which precludes planned use of protected material. There is also a limitation on the number of copies which may be made or, in this case, the number of people who may witness a public performance of a protected work. I can say with virtual assurance that a rehearsed dance recital presented to the entire school and to which parents are invited would NOT come within educational fair use.

Correct, with the proviso that the specific use complies with the spontaneity requirement, i.e. it's not part of the lesson plan. For example, if a student asks, "how would I choreograph to music from West Side Story?" and the teacher brings in the recording the next day to demonstrate, that would be an example solidly within the educational fair use exception to copyright infringement. If, however, the teacher's syllabus includes a unit on, "Choreographing for Broadway," and has, as a set assignment, choreographing a dance to music from West Side Story, that would not fall within educational fair use and would constitute infringement.

Absolutely correct.

Yes, but that doesn't come within educational fair use. Rather that would come under "scholarship and criticism."


That's just page 1. More later.

I was trying to get to making a distinction between someone who has creative control and a mere technician on that person's staff. The impression I had was that a mere camera operator who had no control over content and did nothing more than point the camera where his employer told him to, adjust the focus, and hit record would not be liable if the material he was directed to photograph infringed. Am I correct that you're saying this is not true, that each member of the technical team producing an infringing work could be held to be individually liable for the infringement? I'm certain those who had creative control, the producers of the infringing content, would certainly be liable but do technicians in their employ who have no control over the content share that liability?

Steve -

I think the distinction and exception as Paul sees it would be for the "independent contractor" - where there is not an employer/employee relationship. Generally with an employee, the doctrine of respondat superior controls - the liability rests with the employer as it takes place under their supervision. Basically "the buck stops" at the employer except under unusual circumstances, and can include liability for simple negligence.

This is why Grandma gets sued by the RIAA for what her grandkids did while visiting, even if she couldn't figure out how to download to save her life... the theory being she should somehow have supervised them better... definitely not the most reasonable situation, but unfortunately it's the sort of thing that happens, and is part of the unpleasant legacy that pretty much sunk the music biz IMO...

Only those who actually infringe, i.e. a gaffer wouldn't incur infringement liability, but the sound recordist would (and, possibly, the boom man). Copyright infringement is strict liability, meaning that it doesn't matter whether your thought what you were doing was non-infringing, or whether someone else hired you to do it, either in the context of a captured employee or an independent contractor. The statute addresses ONLY making an authorized copy. None of the statutory exceptions come remotely close to applying to, "Someone told me to do it."

Yep. Make an unauthorized copy, incur liability. Context is irrelevant unless it comes within fair use.

Neither negligence nor gross negligence are strict liability torts. Copyright, however, is strict liability. Though, as a rule, it is impractical to sue an employee for copyright infringement on the part of the employer, there is absolutely no reason not to do it.

I have disagree. Grandma gets sued for contributory infringement and, usually, the grandma suits get thrown out (though she could get sued in tort for negligent supervision). This is very different from respondeat superior which doesn't exculpate employees but, rather, implicates employers.

Thanks, good to know!

And even the Professionals get sued. Coldplay was sued by Joe Satriani for infringement much as George Harrison was years ago. Coldplay used chords or riffs in a similar sequence to one of Satriani's songs that had been published, and he and many of the people he knows said it WAS his song. Just like Harrison.
Anyway, appearently without admitting anything, Coldplay and Satriani came to a settlement. They didn't say what it is, but it just goes to show, Anybody can be sued for anything even the pros.

NEXT CASE! ;-)

The "you stole my idea" suit is pretty common - like only one person on the entire planet figures out how to string some chords and notes (or words) together in a pleasing, cohesive way... Seinfeld's wife just won (suit against her dismissed) the "copycat" suit over her book on how to get kids to eat vegetables....

BUT, this is different from actually using the finished composition directly. The producers of the Ellen DeGeneris show just got sued for their use of numerous music clips on the show...

So, yep, this goes on at ALL levels, and as long as there are attorneys to cobble up a "theory", and Courts to hear those arguments...

"Anybody can be sued for anything" (with attributions to Don Bloom, who may have borrowed it from me <wink>, and I don't remember where I heard it... or if I made it up... or where I left my glasses...)

intellectual property ... interesting idea.

I know what the law says and I follow it. However, there are a multitude of problems associated with intellectual property protection. Intellectual property issues don't simply apply to creative works such as music or images, the area is much wider.

Here in Switzerland for example an architect got a patent for a certain arrangement of rooms. Something that had been done by others before but noone ever thought of getting it protected. A young group of architects just got sued by this guy for using "his" idea. They didn't even know about him or "his" intellectual property.
A chocolate brand in Germany patented a color!

But it gets more complicated:
Quoted from Wikipedia: Any information that can be represented in binary format is, ipso facto, representable as a number, and therefore if the information itself is illegal in some way, the pure number itself may be illegal.[1][2][3] To date, the idea of a number being illegal has not been tested in the courts.
So - if someone were to use a number that represents copyrighted works they would be breaking the law. (the full article on "illegal numbers" is here: Illegal number - Wikipedia, the free encyclopedia )

Where does the line get drawn? I wholeheartedly agree that music and images cannot be used commercially if the necessary rights have not been obtained. I often have to remind my customers of this fact. However most of them have no concept of this. I sometimes get internal documents which are full of illegally used content. They simply don't care. The clients often get annoyed when I try to educate them. I state in my company's terms of business, that 3rd party rights, of media provided by the client, have been cleared. Here in Switzerland, the term "producer" refers not to me, but to my client. It is my clients responsibility to fill out the proper forms and obtain the rights. I use a lot of production music and always fill out the forms for the client and send it to them. What they do with it, I cannot control. If they send it in - good. If not - I have no way of knowing. If they decide to distribute it in another form than originally intended; I have no way of knowing. For example: I use production music for a clip for an internal presentation, to be shown to all the sales people and never again. I fill out the form, they send it in and pay the royalties. Later the client decides, that he likes the clip so much that he puts it on the web. I don't hear about that and they don't clear the music rights. There is NOTHING I can do about that. It happens all the time.

Intellectual property rights are good, but they need to re-adjust to reality.

If a hairdresser here in Switzerland has a radio in his salon, he might receive a visit from our copyright management organisation (SUISA) and he will be charged for public performance. The same applies to taxis and even merry-go-rounds. Playing music on a merry-go-round costs about 25 $ per day...
I ivited the director of IFPI (International Federation Of Producers Of Phonograms And Videograms) to give a speech about the use of media to the employees and clients of my former company. On this occasion I asked him, what if I play music on my car stereo while driving with the window open? do I need to pay for a public performance? He laughed and said: Theroretically - yes.

Reality is: all schools or hobby clubs that have public performances use media illegally. no matter if they sell tickets for it or not.
If I walk down main street on a busy saturday afternoon shopping spree, whistling a Michael Jackson tune (something I would never do) I am breaking the law.

While I agree that common sense should be used, where is the line? Does a sound-alike break the law if it sounds just like a famous tune but is slightly different? It still aims to benefit from the popularity of the tune, does it not? Therefore it is using intellectual property that belongs to someone else.

I try my best to respect the law and keep clients informed and urge them to pay for the rights. Sometimes they get quite annoyed by my insistence.

I think we will see a change in the intellectual property rights legislation over the next few years. We will probably see an increase in harsh enforcement at first but over time the law will change. I see no other way. Under the current laws, almost all consumers are criminals. There has to be some adjustment, that allows intellectual property to be safeguarded in some way and its usage to be managable in an easy fashion. I don't have the solution - there are smarter people than me that will figure it out. If not - the market will.

Some interesting reading about the issue is here:

(Page 1 of 36) - The Role of the World Intellectual Property Organization: Changing International Narratives on Intellectual Property authored by Halbert, Debora.

Chomsky on "Intellectual Property" - alt.fan.noam-chomsky | Google Groups

"Intellectual Property" applies to four distinct areas:

1. Copyright: the protection of the expression of ideas.
2. Trademark: the protection of a word, design, phrase or combinations thereof that protect against consumer confusion as to the source of goods or services in a commercial context.
3. Patent: the protection of a novel, useful method or process.
4. Trade Secret: the protection of business secrets that would give a competitor a commercial advantage if disclosed.

A number of treaties and international conventions have made these definitions nearly universal.

I don't know to what you are referring, but a universal requirement for patent protection is novelty, i.e. it must be something new.

Infringement doesn't have to be intentional to result in liability. Patent, trademark and copyright confer a limited monopoly on the related intellectual property.

No, they obtained a trademark on the color with respect to specific goods.

Well, there's your first problem. ;)

That's because the idea is ridiculous. The digital representation of protected expression is subject to copyright the same as the analog representation of protected expression. A single number, by itself, is not protectable in any form.

A number is not a protectable work of expression. Period.

The line gets drawn at whether the work in question is protectable expression. Book titles are not protectable expression. Mathematical formulae are not protectable expression. A couple of numbers are not protectable expression.

Copyright protection extends beyond commercial use.

There is no such thing as, "illegal content." Ownership of copyright-protected expression without permission is not, in most cases, violative of the law. Copyright protects copying, preparation of derivative works, distribution, performance and display. It is not illegal to own a pirated copy of protected expression.

I can't speak to Swiss law but, generally, under the Berne Convention (of which Switzerland is a member), anyone making an unauthorized copy of protected expression is liable for infringement, and that would include you. A contractual disclaimer is insufficient.

There is some update needed, but not in the sense you think.

Public performance is a right reserved to the copyright owner.

And he is somewhat correct. However, there are other legal principles at play that would obviate liability.

I can't speak to Switzerland, but here in the U.S., all schools and clubs obtain performance rights.

As I said, there are other legal principles that obviate liability.

And just whose common sense do you think should be used?

Possibly. Copyright infringement results from copying an original. If the original is copied, differences are irrelevant.

See above.

I'm sorry, but, no, most consumers are not criminals, nor are most consumers violating intellectual property rights.

With all due respect, before you criticize intellectual property protection, I'd recommend that you learn quite a bit more about it.

Thank you Paul for carefully reading and analyzing my post. I know enough about intellectual property to do my job properly. Which does not mean I always follow the law to the letter... (I sometimes drive faster than I should or park illegally)
I always consider the damage (... I think I can hear your keyboard clicking ...) Yes - I am probably wrong in doing so, but if a client hands me an internal document with images in it that he has no right to use, and he asks me to make a copy so that we can discuss the project, I don't have a problem with that.
Last year I had a different situation. An international corporation asked me to copy a clip from a major Hollywood film, so that they can incorporate it into their Powerpoint presentation at their employee motivation meeting. I refused and passed the job on to someone else, actually I referred them to him (not to incriminate myself)

But I must say I am impressed that all the schools and clubs in the US are completely aware of these issues and clear the rights. Chapeau!

As a photographer as well as a film maker, I get confronted with these issues often. My "strategy" is this: If a client pays me to do photographs for him, he pays for my time to shoot, process and deliver the images. I get paid well for this. Whatever he wants to do with them afterwards is his business. So if he likes them so much that he makes a whole campaign out of it - fine (I know that I am fairly alone in the trade with this attitude)
But I take it further - if I commission a composer to create music for a film, I pay him for his work - I pay well. If the film gets distributed further than initially planned - good - but the composer doesn't get more money. Neither do I. These points I make clear from the start. And we don't pay the rights management organisation either... And that's where it gets tricky - I am limited to use only composers that are not members of that organisation. Because if they are they have to declare and register the track. But since many are frustrated with SUISA (the swiss foundation for music rights) that they either never join or leave.
Maybe it works better in the States, but here... you call 3 times to find out how much for this and that and you get 3 different quotes... Since the client gets billed, not me this is really difficult. For example: A client has an event for about 300 invited guests, no general public admitted, so the exact number of people attending is clear. I produced 13 film segments for this once only perfomance. The filmed performance and the 13 clips would then be distributed widely on DVD. OK - to give my client an idea about the cost we called- the cost for rights for the DVDs was approx. 90 cents each (if memory serves me right - could be more though) They got distributed all over the world, about 5000 copies. OK - no problem there. When we wanted to know how much the rights would be for the perfomance for the 300 people - we were quoted an absolutely ridiculous price in the thousands. We didn't even tell the client but called again, getting quoted a different price - for the second quote they used a different tariff. The third call (and again different tariff) finally gave a reasonable quote of about 1300 $, still a lot but ok... We did the show as planned. A few months later I get an angry phonecall from the client who got a bill for over 13'000 for the performance. I called SUISA and 2 minutes later they told me that the client will receive a new bill for - wait for it.... - about 300 $... less than we anticipated. Now - even though I might be happy about that, I am fortunate that I have such a good understanding with the client and that he checks his bills properly. Others might just have paid and felt bad about the production company.
Another client for whom we produced a weekly 90" commercial with always the same music, aired on local and regional stations, received a bill for about 130'000 $ . I called SUISA again and explained that we used a composer who is not a member, when they asked his name, they said they never heard of him. "of course" I said "because he is not a member". They asked for a written down version (the notes on paper - don't know what that is called - transscript?) I asked who will pay for the time to do this because the entire track is composed on the computer... OK - to cut a long story short, the vice director of SUISA came to us and I showed him the composer and the track on pro tools. He was satisfied. Meanwhile they threatened to take legal action against my client, who understandably was getting seriously annoyed... another 2 months later and tons of phonecalls later the issue simply evaporated into thin air...

Whats my point? Above examples illustrate that even the organisation that does nothing other than protect musicians rights doesn't even understand what applies when. How can the clients?

We used to always need a SUISA number for each commercial that we sent to the stations, this number was included in the tape report and on the tape and the cover. a percentage of the airtime cost was for the music rights.
A few years ago, this was suddenly not necessary anymore... except for the national TV station. How can they manage the rights and pay the composers if they don't even know when and where the stuff gets aired??? I asked them - they did not know...

PFFFFFHHHH - I really didn't mean to write such a long post, but this issue gets me going. I am trying to do the right thing, even though some my clients and many of my competitors couldn't care less.

The whole thing should be reasonable and easy to handle. And there will be changes - which way? I don't know , I leave that up to Paul... ;-) If the changes will work? - the way people apply the rules will show.

Also with all due respect, you missed entirely Oliver's point. Entirely...

Oliver's point was that IP law needed reformation. Some of it does, but the examples given in his post were simply not correct and don't identify those areas that need reform.